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104 Cards in this Set
- Front
- Back
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what does the 4th A's protection protect?
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right to privacy and persons NOT property
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What is the "mere evidence rule"?
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if search is RSBL, cops may search and seize the mere evidence of a crime, as long as PC exists to believe item connected to criminal activity (broadened by Warden)
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What is the 4th A violations TEST? (3)
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1. was there a search and seizure?
2. was there a warrant? 3. If no warrant, does it fall under an exception to make search/seizure RSBL? |
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What is the rationale behind exigent circumstances exception to a warrantless search? (2)
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1. destruction of evidence
2. hot pursuit of a violent felon |
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would the 5th A be violated with physical evidence about your body? (i.e. photos of person, height ID, tattoo ID, fingerprints, DNA, voice, handwriting expemplar, blood test)
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NO, not testimonial or communicative, but mere evidence to a crime... Only statements protected by 5th A
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6th A protections begin at what stage?
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critical stages of prosecution, after a charge brought against a person
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Would a blood test by unRSBLy unfair and shock the conscience if done in hospital, w/ no danger to health?
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NO, so long as PC exists
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Does a forced stomach pumping violate any rights?
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likely the 14th Amendment as shocking the conscience to go into someone's body (very intrusive to do surgery)
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What is the scope of items that can be seized by the government in a search? (4)
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1. instruments of a crime (tools)
2. fruits of a crime (stolen goods) 3. contraband (illegal drugs) 4. mere evidence of a crime |
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Does going into a house w/o a warrant during a chase of a fleeing felon violate 4th A?
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NO, bc of exigency exception to having a warrant (still requires PC), if cops don't chase him suspect will get away (may be a danger to community + destroy evidence)
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can the government seize clothes found in basement, when guy pretending to be asleep but sweaty (suspect fled), and the clothes match an eye witness identification?
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Yes, it is mere evidence of a crime. Even if govt doesn't have property interest in clothes, PC exists here w/ other facts, so it can be seized
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What is the remedy for a 4th A violation?
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Exclusionary Rule-
suppress the evidence (federal = Weeks; states = Mapp) |
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What is the rationale for the exclusionary rule? (5)
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1. deter the cops from illegal activity
2. govt can't be party to unconstitutional acts 3. integrity of criminal justice system 4. to prevent anarchy and contempt w/ govt 5. 4th and 5th A should be read together bc of Boyd case, and 5th A has exclusionary rule 4. |
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When was the 4th A incoporated?
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1949 with Wolf v CO, using 14th DP, but left remedies to the states until Mapp in 1961
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4th A right to privacy has 2 requirements...
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1. subjective [person has] expectation of privacy and what he is doing is private
2. expectation must be RSBL so that society is ready to accept it (in your home, what's uttered in a phone booth) |
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What is the open field doctrine exception?
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no warrant needed to search:
1. area not the home or closely attached to home -even if hidden on property -but must be seen above ground (can't be buried) -even if subjective expectation (dogs, tresspass signs in yard) |
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what is the rationale behind the open field doctrine?
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no RSBL expectation of privacy
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does a flyover by a helicopter violate the 4th A?
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No, under open fields doctrine = no RSBL expectation of privacy, unless defendant can show flyover is HIGHLY unusual (no-fly zone)
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What are exceptions to subjective expectation of privacy?
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1. plain view doctrine
2. something in public view (driving) 3. talking out loud 4. open fields doctrine 5. car searches 6. physical evidence (handwriting, voice, phone #'s dialed, DNA, blood) 7. bank records 8. paint on outside of car 9. smell of personal items 10. etc. |
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if a barn is located on defendant's land, and the roof is covered up, but the doors are open, can cops go in?
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Yes, if the doors were closed, then it would be protected, but since doors are open = open fields doctrine
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What is a search?
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If cop manipulates item in any way = search, and it is protected under 4th A
Anything beyond just looking/smelling at it (like poking bag = search) |
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If a piece of soft luggage in an overhead bin on a bus, traveling a major drug route, is poked by cops, is that a search?
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Yes, since bag manipulated
DISSENTERS: overhead rack = no privacy since people touch bags to move them |
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Is a drug-sniffing dog at the airport a search?
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NO
Rationale: -since dog can only smell drugs = NO RSBL expectation of privacy for drugs in your bags |
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Does a snitch = search?
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NO, no 4th A protection for misplaced trust since you assume the risk of disclosing info to your "friends"
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Does an informant w/ a wire require a warrant?
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NO, misplaced trust w/ no expectation of privacy
Rationale: -conversations seized w/o permission -distrust of govt -tremendous potential for abuse -hallmark of democratic society = spontaneity could be chilled |
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do bank records have an expectation of privacy?
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NO
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does wiretapping a home require a warrant?
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YES + a showing that ev unavailable through traditional methods of investigation
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can cop get a warrant to conduct surgery on a person for a bullet?
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NO, it's an invasion of body that has risk of death, needs anesthetic = 14th violation that shocks the conscience
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can cops search through your trash if its on the curb?
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YES, no RSBL expectation of privacy in CA, since:
-could be rummaged through by children, animals, or bums (but illegal in 40 other states) |
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if cops go through your trash = search?
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NO, since no RSBL expectation of privacy exists
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does a gps device attached to a car = search requiring a warrant?
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NO
-moving from point A to point B out in the open and public -knowingly exposed to public |
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does a GPS device attached to a container of ether = search requiring a warrant?
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YES
-only info from GPS was that container was in particular location, NOT available through other legitimate means -w/in your home you have RSBL expectation of privacy - like breaking into a house -container could have been moved out of sight of cops -or if container so large then did not need GPS in addition to visuals |
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are close-up images of interior of a chemical plant from a flyover = search requiring a warrant?
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NO, since it is a corporation, but if it were a private residence would be different
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Does thermal imaging of a home to measure heat emissions = search requiring a warrant?
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YES, technology is used from outside to gather what is going on inside the house = intrusion as if inside the home
-not a knowing exposure to public -BUT if technology becomes commonplace or if used post 9/11 world to find bombs = different outcome (like Boyd case and seizing papers for protective society) |
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which seizure is the most protected in the hierarchy?
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an arrest as seizure of persons
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Seizure Analysis (3 Questions)
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1. was there a seizure?
2. When is a person actually seized? 3. Was there evidence that supported a probable cause to be seized? |
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which right is easier to waive, 4th or 6th Amendment?
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4th Amendment is way easier to waive because of the nature of the thing you are giving up
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what are the consequences of waiving your 6th A right?
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6th = dire consequences of losing liberty bc of failure to defend themselves + question of accuracy of outcome of adjudication in self-representation
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what are the consequences of waiving your 4th A right?
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-waivers only involve invasion
-find probative ev that crime committed -if 4th violated, then ev is suppressed -if not suppressed, no question about accuracy of outcome of adjudication |
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what are the consequences of waiving your 5th A right?
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-concern w/ accuracy of outcome of adjudication
-same as 6th waiver |
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What is a seizure of a person?
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-restrained of your liberty somehow
-person not free to terminate encounter -w/ a show of authority from cops |
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If consent given to a cop is in dispute, which way will the court rule?
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Usually for a cop, unless there is evidence of a cop lying, and motions to suppress are very unlikely
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How does the court assess a waiver of 4th Amendment right against seizure?
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court looks at totality of circumstances
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what amounts to a violation of seizure protection?
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some objective piece of overbearing conduct by cops (not subjective intent of cops) --> i.e. 4 cops going into a woman's house at 3am and requesting consent to search her house and out of public eye
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what is a person seized?
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when cops do something intentionally to stop your freedom of action objectively
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does a police pursuit constitute detention/seizure?
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NO, until actually restrained of your liberty (like a roadblock)
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What is probable cause?
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when authorities have facts that would show there is a substantial probability that evidence of a crime is now to be found at a certain place
-Required for a search warrant |
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is there probable cause when a cop believes a crime occurred?
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No, only upon facts that would lead a RSBL person to believe crime occurred. We don't care what cop thinks, we care about facts
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is a reliable informant sufficient for probable cause?
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YES, if shown to be reliable, and gives super specific description of information (intimate to know insides of crime)
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how does a court assess probable cause?
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by the totality of the circumstances
Rationale: -we don't want cops acting as lawyers -will suppression of ev deter illegal police conduct? |
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is an anonymous handwritten letter detailing crime sufficient for probable cause?
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Yes if it's content does not deter illegal cop activity, and they have corroborating evidence
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why are informants problematic?
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1. usually involved in criminal enterprise
2. trading favors w/ cops for immunity 3. can give false info (particularly jailhouse informants) 4. have their own interests at forefront 5. unreliable if don't know anything about them |
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who decides probable cause when warrantless search?
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cops
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does probable cause found by magistrate hold more weight than that found by cops in warrantless searches?
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YES
Rationale: -cops compete to catch bad guys, want a suspect -magistrate has no stake in outcome, like a cop does |
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can a cop take off a car panel when a search consented to?
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NO, can only rifle through belongings
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on appeal what is the std of review for probable cause for a warrantless search?
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de novo = totality of circumstances
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does a passenger in a car who confesses, and whose driver consents to search justify an arrest w/o a warrant w/ probable cause
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YES, if facts show a joint venture and something beyond mere presence
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if a confession happens after an illegal arrest does it fall under fruit of poisonous tree?
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YES as 4th violation, not 5th
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what is a neutral magistrate requirement of a warrant?
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-can't be part of prosecution
- can't have stake in case -can't be compensated for each warrant -don't have to be lawyers (but have to know what probable cause is) |
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how particular does a warrant have to be?
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specific to which area, unit, person to be searched, and what to be seized
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if search goes beyond scope of warrant's description, what is remedy?
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exclusionary rule
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what is required of a warrant to be valid and properly executed?
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1. particularity
2. knock and notice requirement 3. neutral magistrate 4. oath/affadavit on which probable cause claimed |
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what is knock and notice requirement of warrant serving?
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knock, announce, then after RSBL amount of time (maybe 10 min or less) cops can kick door in
-to prevent retaliatory violence from shocking/scaring suspects |
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what is remedy for improprely served warrant?
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lawsuit, or interdisciplinary measures
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what are exceptions to the warrant requirement?
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-exigency
-community caretakers -circumstances that make it impractical to get a warrant |
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what falls under exigency exception to warrant requirement?
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fleeing felon
evidence destruction emergency situation (cop hears screams) |
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can cops enter home w/o warrant to arrest suspect for minor crime if probable cause exists?
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NO, nature of crime matters (infraction too small)
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when someone is arrested in a car, what can the cop search?
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under search incident to arrest doctrine: limited to immediate area around the arrestee and passenger compartment of car --> entirety of car can then be searched if nature of arrest gives you RSBL suspicion to find other evidence that pertains to the nature of the arrest (ONLY EV OF THIS CRIME)
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CAR SEARCHES
If you have a RSBL suspicion that ev of crime is in a car, can you search car w/o warrant? |
YES, if you have PC, and can open any container you believe contains what you are looking for = limited by size of containers
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what is search incident to arrest? and what is included?
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after arrest, a search of a person/possessions
-patdown of person -in some circumstances a cavity search (drugs) -can search anywhere w/in wingspan distance, even if locked |
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Is there a difference for search incident to arrest if person in car, or recently near car?
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YES
-in car: search wingspan, no trunk -near car: if facts lead you to believe that more ev of same crime is in car, can search all of it ( not search for anything in particular + container limitation, unless it goes to crime) |
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what is plain view doctrine?
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anything out in plain sight where cops are allowed to be legally can be seized. NO RSBL expectation of privacy for stuff out in plain sight
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what is purpose of search incident to arrest?
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to prevent suspect from destroying evidence or harming the officer
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what does an anonymous tip require to amount to RSBL suspicion?
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particularized facts to the person ratted on that show an intimate knowledge of crime/person
HOWEVER, if event is super dangerous = RSBL suspicion (airplane bomber) |
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what is an administrative search?
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govt carrying out a search for some other legitimate purpose, other than for obtaining evidence of a crime
(building inspectors) |
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what is required for an administrative search?
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consent, and if no consent can obtain search warrant for a general area like a neighborhood
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if govt official doing inspection for any reason, and sees stuff in plain view what can they do?
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can tell cops and cops can get warrant based on PC of plain view sight
OR if cops see in plain view, while carrying out other duty can seize it and arrest person |
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What is a TERRY STOP?
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RSBL suspicion based on articulable facts allow a cop to stop a person for a very brief period of time (no more than 20 min.), if nothing incriminating comes up w/in time, must let him go
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what is required for a TERRY STOP AND FRISK?
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1. lawful detention
2. cop must fear weapons on person --> giving way to PC to patdown 3. frisk must be quick and noninvasive 4. if weapon presumed from frisk, can remove it from outer layers of clothing |
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does detainment = arrest?
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NO, only a restraining of your liberty, but not formally arrested
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can a cop seize anything during a TERRY STOP pat-down?
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NO, must be able to determine what the item is, a baggie of drugs does is not determinable as to its character
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if illegally detained does evidence collected during detainment come in as admissible?
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NO, anything collected during the course of detention = excluded, even confession that is voluntary given (when Miranda waived)
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what factors does a court look to in deciding the RSBLness of a search/seizure?
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seriousness of crime under investigation
importance of ev sought extent of govt privacy intrusion |
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TERRY STOP relies on the notion that cop has RSBL suspicion that.... what?
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a violent crime may soon be committed by armed and dangerous men
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Does a TERRY stop allow a cop to take something/move something for that brief detention period?
(such as luggage for drug dog to sniff) |
YES, as long as investigative search is limited in scope
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what is the standard in judging how long long is too long for a Terry stop?
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did the cops diligently investigate to dispel or confirm their RSBL suspicion?
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is an anonymous tip that someone is carrying a gun enough to stop and do a terry style frisk?
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NO
-no reputation of informant to rely on -tipster must demonstrate intimate knowledge |
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What do you need to stop a car?
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RSBL suspicion that criminal activity is afoot
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does mere presence in a bad neighborhood or location give way to RSBL suspicion?
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NO
BUT unprovoked flight + drug neighborhood + nervousness = RSBL suspicion |
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if cop has no RSBL suspicion or PC, can an individual walk away and ignore the cop?
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YES, but unprovoked flight is not by its nature "going about your business" in a normal way
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During Terry stop what does an individual have to submit to?
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just patdown, and detention out of car
NOT give info about who you are or what you're doing |
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is evading cops enough for RSBL suspicion?
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NO, not on its own. needs just one little other circumstance to amount to RSBL suspicion
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can an unmarked police car pull someone over?
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NO, unless public safety at issue like driving 100 MPH in street
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can a cop using RSBL suspicion for one thing pull over a car for another purpose, such as finding evidence of another crime?
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YES, it does not taint the original RSBL suspicion, UNLESS the pretextual reason was ridiculous (riding bike w/ bell)
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when a car is towed and cops then inventory the items in it so nothing is stolen, is this a lawful search?
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YES, since inventory-taking is protecting civil govt against civil suit for lost property. BUT must be done to every car, can't pick and choose
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can a person be required to identify themselves?
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YES, but person must be legitimately stopped/detained w/ RSBL suspicion to require them to identify themsleves
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can a school search a student's backpack under the 4th A w/o PC, but w/ RSBL suspicion that a school rule was violated?
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YES, not in search of criminal activity, but to carry on the school's rules
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can an administrator of a govt employee search their private desk, locker, etc to determine if rules w/in the workplace were violated w/ RSBL suspicion?
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YES, if done for legitimate reasons for operation of workplace (something you could get fired/disciplined for) and RSBL suspicion exists
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What is permitted at a fixed border checkpoint searching for aliens?
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-NO RSBL suspicion or PC required for a stop
-very brief Terry-type stop -don't have to answer questions (but that will keep you detained longer) -can't search car w/o PC happening during stop -can open trunk to look for illegal aliens |
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what is the rationale behind the fixed alien check points that allow a stop w/ RSBL suspicion?
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-govt has special power to protect borders
- 5 North = major drug route from MX to LA -nature of intrusion less humiliating if everyone is going through it together |
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can a roving border patrol agent pull over cars near the border w/o RSBL suspicion?
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NO, since nature of intrusion is individualized
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What protections do you have at the border?
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NO 4th A protections, until you clear the customs area
-can be strip searched -no RSBL suspicion needed or PC -govt doesn't have to explain why they are singling you out ONLY protection is against something completely inhumane like strip search in public or in front of people cavity searches also require a little RSBL suspicion |
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can you set up a drunk driving road block to arrest drunk drivers?
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NO, arresting drunk drivers is only incidental and cannot be the main purpose of the roadblock BUT rather to protect public safety and discourage drunk driving
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is a roadblock checking for drugs with a drug dog acceptable?
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yes, if not individualized
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